Comment on the need for EU Treaty change

2015-11-01

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In an October 20 article for Carnegie Europe titled “The Real Reason for EU Treaty Change”, Jan Techau propounds a series of arguments on the need for citizens to change their thinking on Europe. In a paragraph characteristic of his position, he writes (emphasis is mine):

Every single day, the Brussels machine—just like the UN Security Council, the World Trade Organisation, or the Organisation for Security and Cooperation in Europe—proves that the interests of nation-states are what matters most in driving international politics. If Europeans want to enable the EU to cope with the existential crises around it, they need to expand the union by revising its treaties, while keeping nations intact. European integration will be built in line with national interests, or it will not be built.

I very much agree with the basic observation that EU politics is, for the most part, a matter of inter-state relations. As regular readers know, I have elaborated on that basic insight over a series of analyses on actual Europe and European integration. Yet, I would also advise against making direct comparisons between the EU and any other international organisation, due to the nature of European law, especially its direct effect.

Europe does not preclude its nations

What Mr. Techau suggests, if I understand it correctly, is that everyone needs to come to terms with the EU’s nations-first reality, rather than entertain delusions that the integration process will ever run against national interests.

Firstly, there is a certain tension in Mr. Techau’s salient point. I believe the aggregation of national interests, manifesting as a given impulse for European integration, cannot be tantamount to the interest of the Union at-large. In all three realms where crises are or have been unfolding, namely on economic governance, the refugee and asylum issues, and security and external policy, a compromise between competing national interests often produces sub-optimal results.

To use the euro as a case in point, its rules-based economic governance is geared towards nominally preserving those national interests at the expense of having a one-sided approach to policy coordination. The euro is supposed to be a supranational currency, yet there is no supranational tier for making political judgements on economic policy for the whole system. The EU lacks a fiscal capacity that would provide for a differentiated stance between the fiscal positions of the individual Member States and the Union at-large.

Secondly, these national interests seem to be interpreted narrowly as the self-preservation of any given EU Member State. The decades-long experience of European integration is proof that the national and the supranational levels are not necessarily in opposition to one another, nor are they mutually exclusive in a broader sense. As can be inferred from Article 50 of the Treaty on European Union (the one which grants the right to each state to leave the EU), nation states are not forfeiting their sovereignty, they are mutualising it to pursue a common good.

Here we need to appreciate the importance of emergence, i.e. a case that can only be made manifest from its constitutive facts in their given interoperation. To be more precise: European politics, when conducted rationally, do promote the general interest of Europeans, from which any particular national interest, understood as the well-being of the given state’s citizens, partakes of. As we witness with the EU’s sovereignty mismatch, European affairs are not a matter of aggregation, but of interoperation. Ergo, do not treat individual national interests as decisively separate from one another, but instead trace the higher-level gains—the economies of scale as the economist would put it—from their concerted operation.

Thirdly and though I personally am not a “more Europe” panegyrist, the calls for further integration or for the federalisation of the Union are not necessarily geared towards abolishing nations. Though it may seem counter-intuitive to argue that a European sovereign will not supersede existing sovereigns, it can all become clearer once we make a distinction between nations and nation states. We have to overcome the tradition of a certain identity that has been passed on to us from early modernity, namely the nationalist (pro-nation-state) tenet by which a given people is identified with a state, a state with a territory, and a territory with a people.

If we adopt a contemporary view of nations as inter-subjective peculiarities in cultural expression, each with their inner heterogeneity, rather than clearly delineated borders that separate homogeneous wholes, we can envisage how a politically united Europe, especially a federated one, will preserve—and be predicated on—this plurality while opening up possibilities for new forms of cultural expression, transnational and transborder in nature (something that is, by the way, not new to European history).

Changing the Treaties

I, as a federalist, have always been of the view that it is preferable to have the EU function as a proper confederation rather than the quasi-confederal centralising system it now is. By that, I mean that I would much rather have clearly-defined procedures on every area of policy over which the supranational level has powers, a unified international personality for the EU, credible instruments for guaranteeing the vertical separation of powers, all while reducing purely inter-state decision-making to its minimum: to a very specific function of amending the Union’s primary law, the Treaties.

What I understand from Mr. Techau’s article is that a series of crises (euro, refugees, security) clearly demonstrate the current model’s limitations. The existing Treaties prevent the EU from having adequate policy tools at its disposal to cope with those challenges. Treaty amendments are thus required to provide the Union with the necessary means for acting in a sufficient and orderly fashion.

Though it is indeed the case that the crises point towards the Union’s flaws, we should not neglect the fact that all those issues are largely handled in an inter-governmental fashion, some high-level diplomacy that occurs behind closed doors. The reason we do not have an existential crisis on say, the regulation of the single market, is because the EU has clear Union-based procedures for addressing any given issue on that front. In contrast, the areas of inter-governmental bargaining provide for all sorts of inventiveness and arbitrariness to cater to whatever balance of power among the Member States.

Can we really claim that the areas where the EU has clear competences on are not serving the common good? Are we European and national citizens not benefiting from consumer protection, environmental standards, data privacy, etc? I am not suggesting that these are flawless, that the European Commission together with the European Parliament and the Council of the EU, acting through the ordinary legislative procedure, have delivered some paradise or cornucopia on this continent, but only wish to argue that the high level of harmonisation, anchored in EU law, provides for a certain stable state: for a reasonable degree of confidence and predictability. I do not think that inter-state negotiations exhibit those qualities, at least not based on their track record over recent years.

While Mr. Techau makes no definitive commitment to any one proposal and provides no clear indication as to the way forward, I would infer that, given the stated need to preserve national interests, the EU would continue to be based on inter-state treaties, and would remain a [quasi-]confederation. Should that be the case, which seems highly likely given the Five Presidents’ report and the intention to proceed with an iterative, gradualist approach to integration, I would be keen on the idea of providing the EU with sufficient competences over areas where inter-governmentalism is currently the default modus operandi.

Admittedly, it is all a matter of one’s vantage point. If we trace the source of the Union’s existential crises to the inadequacies—occasionally the vicissitudes—of inter-state power plays, then we find that Community-based procedures, founded on EU law, are our best chance at coping with existing and emerging challenges. To that end and if I were to enumerate the main reasons I would want a Treaty change, assuming I subscribe to the confederalist mindset, these would be the following:

prescience: reduce the scope of inter-govermentalism which is the major source of arbitrariness in European politics, and replace it with clearly-defined powers for the EU; we citizens need to know in advance what kind of procedures will be followed and what we may expect from them;

presence: the problem with inter-governmentalism, and where the sovereignty mismatch manifests, is its facelessness; for the sake of legitimacy and accountability, we citizens need to be able to tell which person or institution is responsible for policies or decisions that concern the Union at-large;

discreteness: what the current quasi-confederal model does, and why it ends up being centralising, is blur the lines between the national and supranational levels, which is further amplified by inter-state decision-making; whereas we need to have more credible checks on supranational authority, a stronger vertical separation of powers, which will improve the chances of the supranational level acting in accordance with democratic norms;

preparedness: a comprehensive array of competences for the supranational level will enable the EU to have or to develop a clear set of policy instruments for dealing with emerging challenges; so that while the EU’s scope should be broadened and deepened, its powers ought to be interpreted narrowly (given discreteness), without prejudice to the capacity for Union-based action.

Dealing with the real issues

To conclude this article and since the opinion piece I am commenting on appears to be a pragmatist narrative, I need to provide an aside on what I perceive as the much-abused binary of realism-idealism. In the domain of day-to-day politics it is often claimed that some are pragmatists, people who are dealing with actual issues while searching for feasible solutions, whereas others are visionaries who remain committed to some ideal state of affairs rather than engage with the nitty-gritty. Once this perception becomes embedded and ostensibly self-evident, it is easy to dismiss the latter group as “utopian”, “naive”, “loony”, and the like.

I find this, if taken on its own right, to be a rather problematic way of grasping quotidian politics, while I consider it the mark of an antagonistic attitude, one that has no interest whatsoever in being eclectic and synthetic. The way I see this is that in day-to-day politics we are all dealing with real issues, with states of affairs that materially affect our very presence. The abstract difference in opinion or outlook derives from the fact that some tend to be more conformist, while others are more adamant. These are normative qualities: some attach a more-or-less positive value to the actuality of things, others a neutral to negative, feeling that the principles of justice are not implemented adequately or universally.

Perhaps there is a growing consensus on the need to proceed with EU Treaty amendments. Where we still witness disagreements is on the subject matter of such a change, on what exactly is wrong with the present order. Jan Techau provides some compelling arguments, while pointing to the reality of the EU as a national-interests-first formation. My opinion is that even if we remain committed to the Union’s nature as a confederal, inter-state formation, we can still think of rational ways to make it work better, by reducing the scope of its most evident flaw: its over-reliance on inter-governmental bargaining.